NO. 12-15-00279-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE INTEREST OF Z. C.,

A CHILD

§

§

§

APPEAL FROM THE 1ST

JUDICIAL DISTRICT COURT

SAN AUGUSTINE COUNTY, TEXAS

MEMORANDUM OPINION AND ABATEMENT ORDER

C.C. and W.C. appeal the termination of their parental rights. In one and three issues 

respectively, they challenge the trial court’s termination order. We abate this appeal and remand 

the case to the trial court with instructions.

BACKGROUND

C.C. and W.C. are the parents of Z.C., born February 2, 2009. On July 25, 2014, the 

Department of Family and Protective Services (the Department) filed an original petition for 

protection of Z.C., for conservatorship, and for termination of C.C.’s and W.C.’s parental rights. 

The Department was appointed temporary managing conservator of the child, and C.C. and W.C. 

were appointed temporary possessory conservators with limited rights and duties. 

At the conclusion of the trial on the merits, the jury found, by clear and convincing 

evidence, that C.C.’s parental rights should be terminated under subsections (D), (E), (L), (N), 

and (O) of Texas Family Code Section 161.001(b)(1). The jury also found, by clear and 

convincing evidence, that W.C.’s parental rights should be terminated under subsections (D), 

(E), (N), and (O). Thereafter, the trial court found, by clear and convincing evidence, that C.C. 

and W.C. had engaged in one or more of the acts or omissions necessary to support termination 

of their parental rights, and that termination of the parent-child relationship between C.C., W.C., 

and Z.C. is in the child’s best interest. Based on these findings, the trial court ordered that the 

parent-child relationship between Z.C. and her parents be terminated. This appeal followed.
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SUFFICIENCY OF THE EVIDENCE

As part of his first issue, W.C. argues that the evidence is legally insufficient to support 

the jury's finding that his parental rights to Z.C. should be terminated. A no evidence complaint 

is preserved through one of the following: (1) a motion for instructed verdict; (2) a motion for 

judgment notwithstanding the verdict; (3) an objection to the submission of the issue to the jury; 

(4) a motion to disregard the jury’s answer to a vital fact issue; or (5) a motion for new trial. T.O. 

Stanley Boot Co., Inc. v. Bank of El Paso, 847 S.W.2d 218, 220 (Tex. 1992); see also In re 

D.J.J., 178 S.W.3d 424, 426-27 (Tex. App.—Fort Worth 2005, no pet.). W.C. did not make an 

objection to the submission of the issue to the jury or file a postverdict motion to preserve his 

legal sufficiency complaint. Although he filed a motion for new trial, he did not challenge the 

legal sufficiency of the evidence in the motion. See In re A.H.J., No. 05-15-00501-CV, 2015 

WL 5866256, at *10 (Tex. App.—Dallas Oct. 8, 2015, pet. denied) (mem. op.) (finding that 

mother waived her legal sufficiency complaint because motion for new trial raised only factual 

sufficiency challenge). Therefore, W.C. has waived his complaint about the legal sufficiency of 

the evidence to support the jury’s findings.

Also as part of his first issue, W.C. contends that the evidence is factually insufficient to 

support the jury’s findings that his parental rights to Z.C. should be terminated. A point in a 

motion for new trial is a prerequisite to a complaint of factual insufficiency of the evidence to 

support a jury finding. TEX. R. CIV. P. 324(b)(2); In re A.J.L., 136 S.W.3d 293, 301 (Tex. 

App.—Fort Worth 2004, no pet); see also In re M.S., 115 S.W.3d 534, 547 (Tex. 2003) 

(applying Texas Rule of Civil Procedure 324(b)(2) requiring motion for new trial to preserve 

complaint of factual sufficiency to support jury finding in parental termination cases). Although 

W.C. filed a motion for new trial, he did not raise the issue of factual sufficiency in the motion. 

Therefore, he has waived his complaint about the factual sufficiency of the evidence to support 

the jury's findings. Accordingly, we overrule W.C.’s first issue.1

IMPROPER JURY ARGUMENT

In his second issue, W.C. complains that statements made by C.C.’s attorney during his 

opening statement and closing argument were improper jury arguments. Further, he contends, 

 

1 W.C. makes no claim that failure to preserve error was unjustifiable or the result of ineffective assistance 

of counsel. See In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005).
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that even though he did not object at the time, these arguments were so plainly prejudicial that an 

instruction to disregard would probably have been to no avail. In other words, W.C. asserts that 

C.C.’s attorney’s statements were incurable jury argument. Generally, an objection to improper 

jury argument must be preserved by a timely objection and request for an instruction that the jury 

disregard the improper remark. TEX. R. APP. P. 33.1(a)(1); see also Nguyen v. Myers, 442 

S.W.3d 434, 442 (Tex. App.—Dallas 2013, no pet.). However, a point in a motion for new trial 

is a prerequisite to a complaint of incurable jury argument that is not otherwise ruled on by the 

trial court. See TEX. R. CIV. P. 324(b)(5); Nguyen, 442 S.W.3d at 442; Clark v. Bres, 217 

S.W.3d 501, 509 n.1 (Tex. App.—Houston [14th Dist.] 2006, pet. denied).

Here, W.C. admits that he did not timely object to the attorney’s statements and 

arguments. Further, he did not raise the issue of incurable jury argument in his motion for new 

trial. See TEX. R. CIV. P. 324(b)(5); Nguyen, 442 S.W.3d at 442; Clark, 217 S.W.3d at 509 n.1. 

Therefore, he has waived his complaint about C.C.’s attorney’s allegedly incurable jury 

arguments. Accordingly, we overrule W.C.’s second issue.2

FATHER’S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL

In his third issue, W.C. argues that his trial counsel “unreasonably” failed to conduct an 

inquiry outside the presence of the venire panel after a prospective juror commented on her 

knowledge of W.C. and Z.C. According to the record, the prospective juror stated that she knew 

W.C., his girlfriend, and Z.C., was Z.C.’s teacher at a day care, and “found [W.C.] obnoxious.” 

His trial counsel, W.C. asserts, should have moved to disqualify the venire panel and his failure 

to do so resulted in a trial tainted by the negative opinion and remarks of the prospective juror.

Thus, he contends, he was deprived of his right to a fair trial by an impartial jury. We construe 

W.C.’s argument to be that he received ineffective assistance of counsel from his retained 

attorney. 

“In Texas, there is a statutory right to counsel for indigent persons in parental-rights 

termination cases.” In re M.S., 115 S.W.3d at 544; see TEX. FAM. CODE ANN. § 107.013(a)(1) 

(West Supp. 2014). The Supreme Court of Texas has held this statutory right to appointed 

counsel necessarily “embodies the right to effective counsel.” In re B.G., 317 S.W.3d 250, 253-

 

2 Because W.C. has waived his complaint, we express no opinion about whether he could have complained 

about the jury arguments of C.C.’s attorney.
4

54 (Tex. 2010) (quoting In re M.S., 115 S.W.3d at 544). Thus, a parent may challenge an order 

of termination on the ground that court-appointed counsel rendered ineffective assistance. In re 

M.S., 115 S.W.3d at 544-45 (applying Strickland standard to parental termination cases); In re 

J.O.A., 283 S.W.3d 336, 341 (Tex. 2009). However, W.C.’s trial counsel was retained.

In August 2014, W.C. filed an affidavit of indigence and the trial court subsequently 

granted him a court-appointed attorney. W.C.’s court-appointed attorney filed an original 

answer on his behalf in August 2014. The record shows that another attorney filed an 

appearance of counsel on W.C.’s behalf in July 2015, and represented him at trial. The second 

trial counsel told the court at the beginning of trial that W.C. had retained him. 

A parent who hires his own attorney in lieu of the attorney appointed by the court cannot 

raise an ineffective assistance of counsel challenge to the parental termination order. See In re 

V.G., No. 04-08-00522-CV, 2009 WL 2767040, at *12 (Tex. App.—San Antonio Aug. 31, 2009, 

no pet.) (mem. op.) (citing Martin v. Martin, No. 04-04-00828-CV, 2005 WL 1552763, at *1 

(Tex. App.—San Antonio July 6, 2005, no pet.) (mem. op.) (holding “no claim for ineffective 

assistance of counsel lies in a civil case where counsel is retained”)); In re J.B., No. 07-14-

00187-CV, 2014 WL 5799616, at *5 (Tex. App.—Amarillo Nov. 6, 2014, no pet.) (mem. op.) 

(citing In re V.G., 2009 WL 2767040, at *12). Consequently, we hold that W.C. cannot 

challenge the termination order based on a claim that his retained counsel rendered ineffective 

assistance. We overrule W.C.’s third issue.

MOTHER’S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL

In her sole issue on appeal, C.C. argues that her trial counsel rendered ineffective 

assistance of counsel. She also contends that her trial counsel’s performance was so deficient 

that it was tantamount to having no counsel at all, triggering a presumption that it changed the 

outcome of the case. 

Standard of Review

An indigent parent is entitled to appointed counsel in a termination of parental rights 

case, and that statutory right “embodies the right to effective counsel.” In re B.G., 317 S.W.3d 

253-54. Ineffective assistance claims must be firmly founded in the record, and the record must 

affirmatively show the alleged ineffectiveness. In re L.C.W., 411 S.W.3d 116, 127 (Tex. App.—

El Paso 2013, no pet.); see also Walker v. Tex. Dep’t of Family & Protective Servs., 312 S.W.3d 
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608, 622-23 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). When the record is silent 

concerning the reasons for counsel’s actions, the reviewing court will not engage in speculation 

to find ineffective assistance of counsel, and the appellant bears the burden of overcoming the 

presumption that, under the circumstances, the challenged conduct might be considered sound 

trial strategy. In re L.C.W., 411 S.W.3d at 127.

In reviewing claims of ineffective assistance of counsel, we consider all circumstances 

surrounding the case and apply the Supreme Court’s two pronged test used in Strickland v. 

Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). In re M.S., 115 S.W.3d at 

545. Under Strickland’s first prong, the parent must show that counsel’s performance was 

deficient. See id. (citing Strickland, 466 U.S. at 687, 104 S. Ct. at 2064). This requires a 

showing that counsel made errors so serious that counsel was not functioning as the “counsel” 

guaranteed by the Sixth Amendment. In re J.O.A., 283 S.W.3d at 342. Under the second prong, 

the parent must show that the deficient performance prejudiced the defense. See In re M.S., 115 

S.W.3d at 545. This requires a showing that counsel’s errors were so serious as to deprive the 

parent of a fair trial, a trial whose result is reliable. See In re J.O.A., 283 S.W.3d at 342. To 

establish prejudice, the parent must show that there is a reasonable probability that, but for 

counsel’s unprofessional errors, the result of the proceeding would have been different. In re 

V.V., 349 S.W.3d 548, 559 (Tex. App.—Houston [1st Dist.] 2010, pet. denied). A reasonable 

probability is a probability sufficient to undermine confidence in the outcome. Strickland, 466 

U.S. at 694, 104 S. Ct. at 2068.

In conducting our review, we “must primarily focus on whether counsel performed in a 

reasonably effective manner.” In re H.R.M., 209 S.W.3d 105, 111 (Tex. 2006). We give great 

deference to counsel’s performance, “indulging a strong presumption that counsel’s conduct falls 

within the wide range of reasonable professional assistance, including the possibility that 

counsel’s actions are strategic.” Id. Challenged conduct constitutes ineffective assistance only 

when it is “so outrageous that no competent attorney would have engaged in it.” Id. To be 

successful in her ineffective assistance of counsel claim, C.C. must show that counsel’s 

representation fell below an objective standard of reasonableness. See Strickland, 466 U.S. at 

688, 104 S. Ct. at 2064; see also In re L.D.G., No. 12-11-00005-CV, 2012 WL 171888, at *1

(Tex. App.—Tyler Jan. 18, 2012, no pet.) (mem. op.). Failure to satisfy Strickland’s

requirements defeats an ineffectiveness challenge. See Walker, 312 S.W.3d at 623.
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Analysis

In her brief, C.C. argues that her trial counsel failed to (1) provide any Wyoming child 

protective services records, criminal records, community supervision records, or testimony from 

any source to show that she had been rehabilitated, (2) provide any of her psychological or 

counseling records, or (3) provide a defense to subsections (D) and (O) of Texas Family Code 

Section 161.001(b)(1). Thus, she contends, she was constructively denied counsel because trial 

counsel entirely failed to subject the Department’s case to meaningful adversarial testing. See

United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984).

In Cronic, the Court identified three situations implicating the right to counsel that 

involved circumstances so likely to prejudice the accused that the cost of litigating their effect in 

a particular case is unjustified. Bell v. Cone, 535 U.S 685, 695, 122 S. Ct. 1843, 1850, 152 L.

Ed. 2d 914 (2002) (quoting Cronic, 466 U.S. at 658–59, 104 S. Ct. at 2046-47). These three 

situations occur when (1) the accused is denied the presence of counsel at a critical stage of her 

trial, (2) counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, 

or (3) circumstances at trial are such that, although counsel is available to assist the accused 

during trial, the likelihood that any lawyer, even a fully competent one, could provide effective 

assistance is so small that a presumption of prejudice is appropriate without inquiry into the 

actual conduct of the trial. Cronic, 466 U.S. at 659–60, 104 S. Ct. at 2047.

C.C. contends that Cronic applies because her trial counsel did not address the risk to 

Z.C. by providing child protective services records, criminal records, community supervision 

records, testimony, or any psychological or counseling records showing that she had been 

rehabilitated and posed no risk to Z.C. She also argues that her trial counsel failed to subject the 

Department’s case regarding subsections (D) and (O) of Texas Family Code Section 

161.001(b)(1) to meaningful adversarial testing. Thus, she appears to argue that she does not 

need to prove prejudice. However, the differences in the Strickland and Cronic standards are 

not of degree, but of kind. Bell, 535 U.S. at 697, 122 S. Ct. at 1851. In other words, the 

standards distinguish between shoddy representation and no defense at all. Childress v. 

Johnson, 103 F.3d 1221, 1229 (5th Cir. 1997). “[B]ad lawyering, regardless of how bad, does 

not support” applying the Cronic standard. See McInerney v. Puckett, 919 F.2d 350, 353 (5th 

Cir.1990). Accordingly, prejudice will be presumed only when the accused can establish that 

counsel was not merely incompetent but inert. Childress, 103 F.3d at 1228. Here, C.C. does not 
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complain that she was denied counsel at a critical stage of her trial or that her trial counsel was 

inert. Because C.C. complains of her trial counsel’s alleged errors, omissions, or strategic 

decisions in her defense, i.e., incompetence, we decline to apply the Cronic standard to this case.

Moreover, it is C.C.’s burden to overcome the presumption that, under the circumstances, 

the challenged action might be considered sound trial strategy. See Strickland, 466 U.S. at 689, 

104 S. Ct. at 2065; Tong v. State, 25 S.W.3d 707, 712 (Tex. Crim. App. 2000). Any allegation 

of ineffectiveness must be firmly founded in the record, and the record must affirmatively 

demonstrate the alleged ineffectiveness. See Thompson v. State, 9 S.W.3d 808, 813 (Tex. Crim.

App. 1999). But C.C. did not file a motion for new trial and call her trial counsel as a witness to 

explain his reasoning for failing to provide certain records, testimony, or defenses. See Bone v. 

State, 77 S.W.3d 828, 836 (Tex. Crim. App. 2002) (stating that defense counsel should be given 

opportunity to explain actions before being condemned as unprofessional and incompetent); see 

also Anderson v. State, 193 S.W.3d 34, 39 (Tex. App.–Houston [1st Dist.] 2006, pet. ref’d) 

(holding that because appellant did not call his trial counsel during motion for new trial hearing 

to give reasons for failure to investigate or present mitigating evidence, record does not support 

ineffective assistance claim). When, as here, the record fails to show why counsel did not 

provide certain records, testimony, or defenses, we cannot conclude that counsel’s performance 

was deficient. See Jackson v. State, 877 S.W.2d 768, 771-72 (Tex. Crim. App. 1994). Because 

the record does not show deficient performance, we conclude that C.C. has failed to meet the 

first prong of the Strickland test. See id.

C.C. also has failed to show that, but for counsel’s allegedly unprofessional errors, the 

result of the proceeding would have been different. See Strickland, 466 U.S. at 694, 104 S. Ct. 

at 2068; Tong, 25 S.W.3d at 712. C.C. does not explain in her brief how her trial counsel’s 

alleged failures caused her harm. Instead, she requests that this court abate her appeal and order 

the trial court to conduct a hearing to determine whether trial counsel’s actions or failures to 

present a defense are meritorious. We decline to do so. See In re V.V.. 349 S.W.3d at 569-70 

(Keyes, J., concurring in part, and dissenting in part).

Because C.C. failed to show that the result of the proceeding would have been different if 

her trial counsel had provided certain records, testimony, or defenses, she has failed to meet the 

second prong of the Strickland test. See Strickland, 466 U.S. at 694, 104 S. Ct. at 2068; Tong, 
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25 S.W.3d at 712. Therefore, even if she had met the first prong of Strickland, she still could 

not prevail.

We overrule C.C.’s sole issue on appeal.

INDIAN CHILD WELFARE ACT

In our review of the record, we observed that in an adversary hearing report from CASA 

to the court dated August 4, 2014, there was a statement that W.C. “refused to do the hair 

follicle” test because he was “part Indian and [was not] allowed to cut his hair.” In a 

permanency plan and progress report from the Department to the trial court dated January 5, 

2015, the “box” indicating the child’s Native American status was checked. The report 

explained the “Child’s possible American Indian child status reported by [W.C.], father, and is 

yet to be determined.” The permanency plan and progress reports to the trial court dated May 1, 

2015, and September 1, 2015, repeated the language quoted above. The record does not show 

that the child’s Native American status was determined prior to trial, and the order of termination 

makes no reference to the issue.

Congress passed the Indian Child Welfare Act (ICWA) in response to the “rising concern 

in the mid–1970's over the consequences to Indian children, Indian families, and Indian tribes of 

abusive child welfare practices that resulted in the separation of large numbers of Indian children 

from their families and tribes through adoption or foster care placement, usually in non-Indian 

homes.” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S. Ct. 1597, 1599-

1600, 104 L. Ed. 2d 29 (1989); see also In re W.D.H., 43 S.W.3d 30, 34 (Tex. App–Houston 

[14th Dist.] 2001, pet. denied). The ICWA applies to all state child custody proceedings 

involving an Indian child when the court knows or has reason to know an Indian child is 

involved. 25 U.S.C.A. § 1912(a) (West, Lexis current through PL 114-143, approved Apr. 11, 

2016); In re R.R., Jr., 294 S.W.3d 213, 217 (Tex. App.–Fort Worth 2009, no pet.). “Child 

custody proceeding” means, and includes, foster care placement, termination of parental rights, 

preadoptive placement, and adoptive placement. 25 U.S.C.A. § 1903(1) (West, Lexis current 

through PL114-143, approved Apr. 11, 2016). An Indian child is defined by the ICWA as an 

“unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) 

is eligible for membership in an Indian tribe and is the biological child of a member of an Indian 

tribe.” 25 U.S.C.A. § 1903(4) (West, Lexis current through PL 114-143, approved Apr. 11, 
9

2016). The ICWA, however, does not define what constitutes being a “member” or “being 

eligible for membership.” See 25 U.S.C.A. § 1903(4). Each tribe has its own criteria for 

determining tribe membership. See In re R.R., 294 S.W.3d at 217-18.

The Bureau of Indian Affairs created guidelines for state courts to use in Indian child 

custody proceedings to assist with the interpretation of the ICWA. See BUREAU OF INDIAN 

AFFAIRS GUIDELINES FOR STATE COURTS; INDIAN CHILD CUSTODY PROCEEDINGS (BIA

GUIDELINES), 44 FED. REG. 67,584 (Nov. 26, 1979). The Guidelines state that “[p]roceedings in 

state courts involving the custody of Indian children shall follow strict procedures and meet 

stringent requirements to justify any result in an individual case contrary to these preferences.” 

BIA GUIDELINES, 44 FED. REG. at 67,586. Specific instructions are provided in the Guidelines 

for the determination of the status of an alleged Indian child. See In re J.J.C., 302 S.W.3d 896, 

900 (Tex. App.–Waco 2009, no pet.). The burden is placed on the trial court to seek verification 

of the child's status through either the Bureau of Indian Affairs or the child’s tribe. BIA

GUIDELINES, 44 FED. REG. at 67,586 (stating that “the court shall seek verification of the child’s 

status”). Further, the Guidelines provide that “[c]ircumstances under which a state court has 

reason to believe a child involved in a child custody proceeding is an Indian include [when] . . . 

(i) Any party to the case . . . informs the court that the child is an Indian child. . . . (ii) Any public 

or state-licensed agency involved in child protection services or family support has discovered 

information which suggests that the child is an Indian child.” Id.

Under the ICWA, an Indian tribe is entitled to notice of a custody proceeding involving 

an Indian child. See 25 U.S.C.A. § 1912(a). It is the duty of the trial court and the Department to 

send notice in any involuntary proceeding “where the court knows or has reason to know that an 

Indian child is involved.” 25 C.F.R. § 23.11 (Lexis current through Apr. 25, 2016 issue). 

Section 23.11 also requires that the notice be sent to the “appropriate Regional Director” and the 

Secretary of the Interior. Id. § 23.11(a), (b), (f). Upon receiving the notice, the Secretary of the 

Interior or his designee is obliged to make reasonable documented efforts to locate and notify the 

tribe and the child’s Indian parent or custodians within fifteen days or to notify the trial court 

how much time is needed to complete the search for the child’s tribe. Id. § 23.11(f).

A violation of the ICWA notice provisions may be cause for invalidation of the 

termination proceedings at some later, distant point in time. See 25 U.S.C.A. § 1914 (West, 

Lexis current through PL 114-143, approved Apr. 11, 2016) (providing that “[a]ny Indian child 
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who is the subject of any action for . . . termination of parental rights under State law, any parent 

. . . from whose custody such child was removed, and the Indian child’s tribe may petition any 

court of competent jurisdiction to invalidate such action upon a showing that such action violated 

any provision of sections [1911, 1912, and 1913] of this act”); see also In re W.D.H., 43 S.W.3d 

at 38-39 (recognizing parent of Indian child has standing to challenge adequacy of notice even 

though tribe declined to join suit). Consequently, because the termination proceeding here may 

ultimately result in the adoption of Z.C., strict compliance with the notice provisions of the 

ICWA and the regulations implementing it in the Code of Federal Regulations is especially 

important, or “the State could offer prospective adoptive parents no assurance this termination 

and a subsequent adoption could not be invalidated.” See In re J.W., 498 N.W.2d 417, 419-22 

(Iowa Ct. App.1993) (disapproved on other grounds by In re N.N.E., 752 N.E.2d 1 (Iowa 2008)) 

(recognizing that notice provisions of the ICWA are to be strictly construed and reversing order 

terminating parental rights because of inadequate notice and remanding for new hearing after 

proper notice).

As noted above, a statement in an adversary hearing report from CASA noted that W.C. 

“refused to do the hair follicle” test because he was “part Indian and [was not] allowed to cut his 

hair.” Moreover, three permanency plan and progress reports indicated that Z.C.’s father 

reported that the child was of possible “American Indian status.” This was information 

discovered by a state licensed agency involved in child protection services that suggested Z.C. 

may be an Indian child, and it was sufficient to trigger the ICWA’s requirements for notification 

and determination of Indian status. See In re J.J.C., 302 S.W.3d at 901 (holding that the trial 

court had reason to believe that the children were Indian because DFPS discovered that their 

maternal grandmother was alleged to be a member of the Chippewa Indian Nation); In re R.R., 

294 S.W.3d at 222 (holding that the trial court had reason to believe the children were Indian 

when mother testified that her grandmother was a registered member of the Kiowa Indian 

Nation). Therefore, the trial court was obligated to notify the Indian tribe or tribes for an inquiry 

into the child’s Indian status. See In re R.R., 294 S.W.3d at 219 (noting that the Guidelines’ 

listed circumstances “shall trigger an inquiry by the court and petitioners”). The notice 

provisions of the ICWA are mandatory. See BIA GUIDELINES, 44 FED. REG. at 67,586 (providing 

that when a state court has reason to believe a child involved in a child custody proceeding is an 
11

Indian, the court shall seek verification of the child’s status from either the BIA or the child’s 

tribe).

CONCLUSION

Because the inquiry required by ICWA is necessary here, we abate this appeal and 

remand the case to the trial court. Proper notice that complies with ICWA’s notice requisites 

shall be provided, and then the trial court shall conduct a hearing to determine whether Z.C. is an 

Indian child under the ICWA. See TEX. R. APP. P. 44.4 (providing that appellate court shall not 

reverse or affirm judgment if trial court can correct erroneous failure to act, and authorizing 

appellate court to direct trial court to correct erroneous failure to act and to then proceed as if 

erroneous failure to act had not occurred). The trial court shall cause a record of the proceedings 

to be prepared and make appropriate findings as to whether Z.C. is an Indian child. The trial 

court also shall cause a supplemental clerk’s record (including any orders and findings resulting 

from the ICWA hearing) to be filed with the clerk of this court. After we receive the 

supplemental clerk’s record, this appeal will be reinstated.

If, after proper notice and hearing, the trial court has determined that Z.C. is not an Indian 

child, we will issue a judgment affirming the trial court’s termination judgment regarding C.C. 

and W.C. See TEX. R. APP. P. 43.2(a). If, after notice and hearing, the trial court determines that 

Z.C. is an Indian child, we will issue a judgment reversing the trial court’s termination judgment, 

and remanding the cause to the trial court for a new trial for C.C. and W.C. applying the ICWA. 

See TEX. R. APP. P. 43.2(d); R.R., Jr., 294 S.W.3d at 238.

GREG NEELEY

Justice

Opinion delivered April 29, 2016.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

(PUBLISH)
COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

ABATEMENT ORDER

APRIL 29, 2016

NO. 12-15-00279-CV

IN THE INTEREST OF Z. C., A CHILD

Appeal from the 1st District Court 

of San Augustine County, Texas (Tr.Ct.No. CV-14-9548)

THIS CAUSE came to be heard on the appellate record and briefs filed 

herein, and the same being considered, because it is the opinion of this Court that there was error 

in the trial court below, it is ORDERED, ADJUDGED and DECREED by this court that this 

appeal be abated and the cause remanded to the trial court with instructions to give proper 

notification pursuant to the ICWA and determine Z.C.’s status as defined by ICWA and for 

further proceedings in accordance with this opinion; and that this decision be certified to the 

court below for observance.

It is THEREFORE ORDERED that the appeal be abated and 

administratively removed from this court’s docket until the supplemental clerk’s record 

containing the trial court’s order and findings is filed with the clerk of this court.

Greg Neeley, Justice.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.